Another cockroach in cabinet – judiciary having control of public funds

Justice Shylendra Kumar of Karnataka HC recently posted a new entry on his blog as given below.

http://sites.google.com/site/justdvskumar/netizens-citizens-vii-22-05-2010

What was a new revelation was about the extent of funds available (Rs 13 Crore) to judiciary at their discretion, under aegis of Karnataka State Legal Services Authority, and the disclosure by Justice Kumar that he himself had to wait for 3-4 months to get information related to certain expenditures under category of ‘hospitality expenditures’  from the Karnataka high court registry!

Here is information about what Legal Services Authority is all about from their website here: http://www.kslsa.kar.nic.in/aims_objectives.htm

The Legal Services Act 1987 is basically aimed to provide free and competent legal Service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.

Creating Legal awareness, Legal Aid and Settlement of disputes through amicable settlement are the main functions of the Authority.

Needless to say, it is an authority with mandate of delivering effective justice, and esp to help poor people who may not be able to afford lawyers.

Here are the relevant part of Justice Kumar’s blog post with important points in bold:

Recently, I heard that there were some malpractices, particularly, some illegalities having taken place in the matter of expenditure incurred by the High Court under the head ‘hospitality expenditure’, more so, during the stewardship of Justice P D Dinakaran as Chief Justice of the Karnataka High Court.

Being a little disturbed with such development, I had sought for some factual information from the registry and the information which I received has not put me at ease, but on the other hand has put me to great uneasiness and anxiety, particularly about the way and the direction which our High Court is heading.

I am placing the particulars of expenditure incurred as furnished by the registry for the information and perusal of the general public, an information which is otherwise available to you all under the Right to Information Act, and to form your own opinion and of course to react and respond suitably.

Under our constitutional scheme, judiciary does not have financial independence and the expenses in the judiciary is also part of the budgetary proposal and being voted by the State legislatures and the Union in the Parliament and therefore to that extent judiciary was blissfully kept independent of any financial responsibilities and the concomitant accountability with regard to expenses.

While that is the scheme under our Constitution, in recent times, with all sorts of additional responsibilities having sprouted on the courts, particularly, at the level of the High Courts and the Supreme Court and the High Courts and the Supreme Court getting more and more active on the administrative side, have been privy to considerable extent of State funds and whom the amount is being spent at the sole discretion of the Members of the Judiciary.

The checks and balances which are available under the Constitutional scheme and the statutory scheme in respect of any State expenditure, particularly, the scrutiny by the Comptroller and Auditor General of India under Article 148 of the Constitution of India is not fully or strictly applied in respect of expenditure incurred by the Judiciary in respect of funds which are available at the disposal of the Judiciary wherein the discretion of the Chief Justices matters. The State making available vast funds as part of the services made available to the general public under the Karnataka State Legal Services Authorities Rules, 1996 and being at the sole discretion of the Executive Chairman who is a Member of the Judiciary and Judge in the High Court, while has given considerable financial independence and capability to the Judge heading this Authority, the manner of utilization/application of such large amount has come in for criticism and over a period of time, the public opinion is that Judges are most ill suited to occupy the position of a Executive Chairman of the Legal Services Authority and it should be looked after by other persons who do not have the onerous judicial responsibilities to discharge.

Well, opinions may differ, but the fact remains that Judges becoming privy to large or vast amounts has not been a healthy trend if one should look at the developments during the past two decades and it certainly calls for a debate, a rethinking and suitable changes if so felt and warranted.

I learnt that Karnataka State Legal Services Authority had received not less than Rupees Thirteen Crores for its annual expenses during the year 2009-10 and I was not very happy with the manner of the funds allocated to expenditure of this Authority and I had called for information about the same when I was serving at the Circuit Bench of the High Court at Gulbarga during November-December 2009.

It took more than three to four months for the Member Secretary of the Karnataka State Legal Services Authority to part with this information even to a Judge of the High Court and it is only with some pressure and threats I was able to get the information. This again is not a very healthy development, particularly, if persons who are entrusted with public funds are asked for accounting the same, it should be available at a minute’s notice and at fingertips, and not furnished after three months like some Judges, declaring the particulars of their assets and liabilities!.

Judiciary unable to check judge’s antecedents, can they check accused’s?

Following news shows how lax are judiciary’s standards in checking the antecedents of one of their own.

http://www.indianexpress.com/news/indore-absconder-worked-as-judge-in-same-city-till-past-caught-up-with-him/621726/

A man who was declared an absconder by a court in Indore worked as a judge in a superior court in the same city for years before his past caught up with him.

The Madhya Pradesh High Court has suspended Additional District and Sessions Judge Narendra Kumar Jain for concealing the matter.

As a student of Christian College in Indore, Jain, along with four friends, was involved in a brawl with a hotel owner and his son in 1983. The owner, whose nasal bone was broken, lodged a police complaint that led to the arrest of Jain and his friends.

Jain was released on bail and appeared in court once in 1985. He was declared an absconder by the court when he did not appear later despite repeated summons.

Jain cleared an examination meant for judicial officers in 1994 but suppressed the fact that he was involved in a criminal case and was facing trial.

Cheque bounce cases – penalty increased for compounding

All this seems very nice and good on paper, but it has to be seen in practice why a cheque defaulter would not like to pay up to maximum 20% of principal amount, and delay the case till it reaches Supreme Court.

http://timesofindia.indiatimes.com/NEWS/India/SC-gets-tough-on-cheque-bounce-cases/articleshow/5887622.cms

NEW DELHI: Delay in settling cheque bounce cases will now cost the defaulter dear, up to 20% of the cheque amount. The penalty for delayed settlement of the cheque amount, after conviction in the trial court, would rise steadily from 10% in district courts, 15% in high courts to a whopping 20% in the Supreme Court.

The SC on Monday took this radical step through a pioneering judgment which aims to curb the tendency among defaulters to sit over the amount tendered through a bounced cheque.

Saddled with 30 lakh cheque bounce cases, the SC accepted most of the suggestions offered by attorney general G E Vahanvati.

A Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal also laid down guidelines for early settlement in cheque dishonour cases under Section 138 of the Negotiable Instrument Act.

The judgment, authored by Chief Justice K G Balakrishnan, indicated that defaulters going for early settlement before the trial court would have to pay just the principal amount with applicable interest.

But if they approched the district court for settlement after being convicted by the trial court, they would have to pay 10% of the cheque amount to avoid going to jail. So if a chque amount is for Rs 1 lakh, then to compound the offence before the district court, the defaulter has to pay an additional Rs 10,000 to avoid going to jail.

Similarly, if the defaulter agrees for settlement and compounding of the offence at the HC stage, then he would have to pay 15% of the cheque amount. The amount so collected would be given to Legal Aid Authorities of the respective states which provide free legal assistance to poor litigants in various forums, the SC said.

This judgment will go a long way in reducing the pendency of over 30 lakh cheque bounce cases which have jammed the wheels of justice already slowed down by pendency of 2.7 crore cases. During the hearing of a Section 138 case between Damodar S Prabhu and Sayed Babalal, the Bench observed that there had been an enormous rush of cases after cheque bounce was made a penal offence in 1989, followed by the amendment in 2002 providing for summary trial for early resolution of the dispute.

The last line is the giveaway, there was enormous increase in cheque bounce cases AFTER it was made a penal offence in 1989.  Normally, one would expect that a criminal penalty for an offence would deter people from committing that offence.  It is clear that justice in India does not work the way it is supposed to be!   There is a huge latent demand for justice, and it does not seem to be satisfied no matter how many new laws get created.

Quality going down, so create regional benches of Supreme Courts

In another post on topic of having regional supreme courts, I had mentioned the need to have benches of supreme courts in other states too so that highest court of justice can be available to more people.  This is especially important in a large country like India with a billion plus population.  Now it seems the Supreme Court has at least admitted that due to more workload the quality of their judgments is going down!

http://timesofindia.indiatimes.com/india/Flood-of-appeals-affecting-verdicts-SC/articleshow/5706707.cms

NEW DELHI: A concern expressed in hushed voices by senior lawyers for quite some time in the corridors of the apex court has become official. The Supreme Court has admitted that deluge of appeals is affecting the quality of its judgments, which are abided by all and sundry as the law of the land.

It does not want the apex court, set up to decide constitutional issues and inter-state disputes in addition to giving opinion to the President on tricky legal questions, to get reduced to just a final court of appeal being mired in the volumes.

To devise a way out of the jungle of files eating into judicial time and affecting the quality, a Bench comprising Justices Markandey Katju and R M Lodha said the time has come for a constitution Bench to firmly lay down guidelines as to the categories of cases that the apex court should entertain rather than get engaged in deciding routine appeals or mundane issues.

It will be much better to create regional benches of Supreme Courts so that the workload can be shared across higher no of benches and judges who can be drawn from state.  Currently a Supreme Court judge has to be in Delhi since that is the only place which has SC.  Having regional benches will also allow more judges to be closer to their home state and will allow more and better judges to come into Supreme Court.

"However, sadly the position today is that it is under such pressure because of the immense volume of cases in the court that judges do not get sufficient time to deliberate over the cases, which they deserve, and this is bound to affect the quality of out judgments," the Bench said.

It issued notices to the SC Bar Association, Bar Council of India and the SC Advocates on Record Association to assist the constitution Bench in framing appropriate guidelines to limit the flooding of appeals.

This is another short sighted attempt, the kind which can happen only in India.  The lawyers are supposed to suggest reform and citizens who need justice are nowhere involved.  It just shows the high-handedness of the higher court judges towards general public.

With the computerisation of the Supreme Court registry and use of information technology in the docket management, the pendency of the cases in the 1990s was brought down from over one lakh to a manageable 20,000.

So if a good thing has worked in the past, what stops the Supreme Court from doing better things now?

CJI Balakrishnan speaks like a politician, is this independence of judiciary?

The chief justice of India does not think the case fit for having Indian citizens access to supreme court bench nearer to where they stay. They must come to SC in Delhi because – hold your breath – that is the capital of India!

http://timesofindia.indiatimes.com/india/CJI-against-having-regional-SC-benches/articleshow/5518179.cms

NEW DELHI: Virtually slamming the Law Commission's radical recommendation for a Supreme Court each in four regions for easy access to litigants and fight pendency, Chief Justice of India K G Balakrishnan on Saturday warned that such a move could lead to disintegration of SC's authority.

Oh pleeeaaase… with Mr Prashant Bhushan of CJAR asserting “half of previous 16 chief justices of India were corrupt”, the aam aadmi citizen does not give high value on a concept called SC authority. As far as disintegration of SC authority is concerned, that has already happened starting with when Justice D V Shylendra Kumar had said that CJI cannot speak for HC judges in matter of declaration of assets by judges; and further recently when Delhi HC bench also gave judgment that Supreme Court cannot escape purview of RTI.

Speaking at the inaugural R K Jain Memorial Lecture on "Towards Holistic Restructuring of the Supreme Court of India", the CJI said: "I am not in favour of the disintegration of the Supreme Court. Personally, I feel the SC cannot be in any other part of India. This is the highest court of the land and should be in the capital city of the country. It is in the capital city of the land."

Mr CJI, with all due respect this is not about personal opinion of a CJI. The Lok Sabha can be in Delhi being capital city, because only 545 legislators need to travel to Delhi to be present for law making and other parliament’s business. But the 1.3 crore and counting population of India can be better served if there were more SC benches closer to where they stayed. They don’t need to be reminded that they were not fortunate enough to be born in Delhi or closer to Delhi.

"It is a final court and we should maintain the integrity of the Supreme Court," Justice Balakrishnan said, while agreeing with the suggestion of senior advocate K K Venugopal that there could be an additional appellate court in between the high courts and the Supreme Court.

The CJI said there was nothing wrong in attempting to restructure the functioning of the three-tier justice delivery mechanism but the Supreme Court should not be allowed to be disintegrated. Another speaker, senior advocate A M Singhvi, also agreed with the CJI that there should not be furcation of the apex court on a regional basis.

Though the filing of cases in the apex court was rising at an alarming rate and pendency was mounting despite increase in the sanctioned strength from 26 to 31 judges, the CJI was against crowding the apex court with more judges.

"It is not possible for the Supreme Court to handle that much of cases and it is also not possible to increase the strength of the judges in the Supreme Court. As a national court, I feel that 31 judges are slightly on the higher side," he said.

Of course, once the ‘learned people’ make up their mind that there can be only 1 SC, and only 1 SC building in Delhi which cannot expand upwards or sideways, then obviously there will be limitation on number of SC judges.

"We don't agree to increase the number of judges anymore and it is also not possible to reduce its jurisdiction," he said and cited examples from the US, the UK and other countries where the top courts have only 10 to 15 judges.

And what is the population of US and UK compared to India? Should we reduce the number of MPs also from 545 to some lower number being closer to that in US or UK? What about 1.3 billion people who have to depend on 31 judges of SC for justice?

Unfortunately, the whole drama seems to be of concentrating power of judiciary at the centre of power of executive in Delhi. With credibility of SC going down especially in recent times, it is highly suspect if the real reason is not to allow future SC judges in newly created SC benches to go their own way against corruption in judiciary. A concentration of highest seat of judiciary close to highest seat of executive, and centre of political hobnobbing can only give rise to such suspicions.

Justice is coming for undertrials, if intentions are to be realized!

UPA govt and Law minister Moily has recently made the mother of all promises, i.e., to get 75% of undertrials out of prison by 31st Jul 2010.

http://timesofindia.indiatimes.com/india/Moilys-mission-Get-75-of-undertrials-out-of-prison-by-July-31/articleshow/5454196.cms

Excerpts from the news:

The UPA government is setting a six-month deadline, starting January 26, for the release of 1.25 lakh of the 1.7 lakh undertrials languishing in jail though booked for petty offences and despite having served a major part of the prescribed maximum sentence.

Comments: It is interesting why no govt before thought of an easy solution like this.

Further, some statistics on population in jails and that of undertrials:

India has around 1,500 jails having a capacity to lodge 2.5 lakh prisoners. But these house as many as 3.5 lakh inmates. As many as 70% of the jail population comprises undertrials, which means their number could be pegged at 2.45 lakh. As 70% of the undertrial prisoners are booked for petty offences, this category of population in jails would be 1.7 lakh.

Further...

"I have requested the chief justices of all high courts to instruct the district courts to do everything possible under the Criminal Procedure Code and other laws to ensure that those languishing in prison unnecessarily be forthwith released," he said.

Comments: Nice intentions. It is moot point how the courts which are said to be overburdened with cases will handle these new cases. Read here about lack of judges in high courts.

Further....
Asked how so many undertrial prisoners could be released within six months, he said there are many ways to achieve the result -- plea bargaining system in which the undertrial accepts guilt and the court records conviction and releases him by sentencing him to the period of imprisonment already undergone, expediting their cases by holding trial on a day-to-day basis, holding court proceedings inside the prison premises or through video-conferencing.

Comments: Plea bargaining has been there on paper since CrPC amendments of 2005, notified in 2006. It is not so simple that you ask a prisoner to agree to a lesser charge etc, and if he agrees, and court also says yes; then everybody is happy and they go home. Under Sec 265C of CrPC, specific guidelines have to be followed for plea bargaining in which public prosecutor, accused, victim, and courts are involved. So a defined court process is inovlved here too.

About expediting trials on day-to-day basis, that is like asking a wish from genie in the bottle. If that could be done, then what is currently stopping courts from having day to day trials?

Further...
To ensure that there is no hitch from the government side, the law minister has divided the country into various zones and put an additional solicitor general in charge of each to see that the first actual legal reform by way of releasing undertrials becomes successful.

"Guidance to the ASGs would come from attorney-general G E Vahanvati and solicitor-general Gopal Subramaniam," Moily said.

Comments: All of the said measures like writing to chief justices, ASG, dividing into zones, and so on smack of a high-level approach handed from top levels of govt and judiciary to levels below. There is no clarity on how the lower courts, police, prosecutors will be involved in such a massive undertaking. Till that happens, it can be treated more like a nice wish of the UPA govt and law ministry.

Fast track justice in 4 or more years, shine India shine

A case of rape and murder of a working woman in Bangalore few years back has been going on in Fast Track court for 4 years now. The case had made much headlines and concerns were raised over safety of working women, especially those who work in night shifts.

http://www.timesnow.tv/Which-fast-track-court-takes-4-years/articleshow/4335882.cms

Excerpt from news below with emphasis mine:

When TIMES NOW's editor-in-chief Arnab Goswami put forward the question in Newshour, whether judges of the fast track courts should also be questioned on why cases such as Pratibha's were allowed to extend beyond the stipulated time of 6 months, noted lawyer and human rights advocate Soli Sorabjee said one recourse for the affected parties against the "granting of adjournments for the asking" would be to approach a higher court to seek speedy redressal. Union Law Minister Veerappa Moily said: "Even the fast track courts are frustrated with this kind of an attitude. A fast track court meant that a case once taken up for trial should be over within 6 months including judgement. That is what we have proposed in our draft Bill for the Sexual Offences Special Courts Act, the Special Courts Bill 2010.

Comments: You know I have problems with both of the above 2 suggestions.

Regarding Mr Sorabjee's suggestion about approaching higher court in case of adjournments, this is like saying that if the child did not get milk from mother when he cried first time; so he should cry second time, only now with a higher noise! What about the fact that adjournments being granted on flimsy grounds is part and parcel of justice Indian style? Even the recently notified and gazzetted CrPC amendments cleverly did not notify the clause on disallowing adjournments on flimsy grounds! Read here.

Regarding law minister suggestion, I can only say "tussi great ho sir ji! ". If the number of laws were not enough, the remedy for some problem in justice delivery system is to create one more special law for special need to fast-track sexual offences' trial. Just pray if you are a victim of crime in India, it somehow falls under this special act for you to get speedy justice!

CrPC Amendment now gazetted with changes, a full one year later!

Finally after a gap of one year, the CrPC amendments have been notified.

http://www.indianexpress.com/news/In-New-Year-gift-for-India--victims-get-a-voice--the-right-to-appeal-judgments/561778

The only problem is, the one amendment which was most useful for common people to escape clutches of powerful people controlling police -- i.e. power of arbitrary arrest by police; HAS NOT BEEN NOTIFIED.

Instead, the 'gift' seems to be that if you fought for 5 years in criminal court against a crime-accused, and he was acquitted by court; then you can appeal against acquittal and run around courts for another 5 years hoping for a conviction this time! What are the chances that someone who got acquitted due to delay, shoddy investigation by police, witnesses not available etc will be nailed the second time?

The New Year will bring a special gift for victims of crime in India. On the second last day of 2009, the government decided to notify a landmark amendment to the Criminal Procedure Code (CrPC), giving victims the right to appeal against a court order acquitting an accused, or convicting the accused of a lesser offence.

Under the amended Sec 372 CrPC, the victim will not need the permission of any law enforcement or prosecuting agency to appeal a court order. Currently, an appeal can be made only if the prosecution so decides.

Now coming to a few other amendments which were of real importance to litigants and public but which were NOT NOTIFIED:

However, the Ministry has decided not to notify two amendments that the lawyers had opposed strongly to CrPC Sections 41(A) and 309.

The amendment to Sec 41(A) barred police from arresting an accused for an offence that carries a maximum punishment of seven years without first issuing him/her a notice of appearance.

Comment: What do lawyers gain from above? You guessed it right. The money they get from arranging bails for people accused in false cases by powerful people who can game the police and judicial system to their advantage.

The amendment to Sec 309, aimed at speeding up trials, disallowed the granting of adjournments on flimsy grounds.

Comment: And what a crime it would have been if adjournments were not granted on flimsy grounds! Justice must be given and seen to be given, but make sure after so many adjournments that any remaining witnesses are untraceable, pass away to heavens, or become hostile just to save themselves trouble!

An important amendment that will be notified is Section 357A, making it mandatory for state governments to draw up a scheme in coordination with the Centre to provide funds for compensation to victims or their dependents. Victims will be entitled to compensation if the offender is not caught and tried.

Comment: Would like to see this one implemented! How state governments will decide the amount of compensation, how much compensation for what kind of victim, and so on. And most importantly, how will funding for the comensation be arranged -- will States and Centre fight for another 4 years (when elections are due) on the funding requirements?

High courts functioning with 3/4 judges - what was that?

This is a slightly older news, about 3 months old, which I could not blog about earlier. However I realized that for a litigant/petitioner/respondent/accused who is used to Indian Judicial Time (IJT), 3 months is like 3 days! So it is still fresh for the court-weary people.

So I present the recent news which gives the gory statistics on the shortage of judges in Indian high courts:

http://timesofindia.indiatimes.com/city/mumbai/HCs-functioning-with-just-3/4th-judges/articleshow/5113567.cms

There is one kind of poverty where the poor does not have enough food to eat. There is another kind of poverty where the poor does not even have a big enough vessel to hold food to eat, even if food was available somehow. We seem to be suffering from the latter kind of poverty in our judicial system.